Privileges abound in defamation, comprising absolute or conditional defenses to claims of communications that harm the reputation of the subject. A pending decision of the Minnesota Supreme Court may expand or constrict one of them: the privilege for statements made during a background investigation of a prospective police officer. In Minke v. City of Minneapolis, 2013 WL 3968762 (Minn. App. 2013)(unpublished), the court of appeals rejected a defamation claim by a community service officer who sued his former supervisor in the Minneapolis Police Department for negative remarks in a background investigation that cost him a potential full-time position with the Mounds View Police Department. The court reasoned that absolute immunity, which bars any claim regardless of falsity or malice, was unnecessary and inappropriate to carry out law enforcement duties. Rather, the conventional qualified privilege for defamatory statements was applicable. This lesser privilege still is a formidable defense, but unlike an absolute privilege, it is not impregnable and can be overcome by showing malice, or ill will, exaggerated statements, or other improprieties.

The Minnesota Supreme Court granted review, No. A12-2272, and heard oral argument on the case early in February. The court will now decide whether to reverse, which would bar the lawsuit, or affirm and allow the case to proceed.

If the appellate court decision is affirmed and qualified privilege applies, claimants and their advocates can argue, when confronted with this defense, that the statements made about a job applicant were overbroad, perverse, and venal and can bolster their position by pointing to preexisting animosity or any spite between the person making the statements and the subject of them. Those defending against such claims can try to show that the statements are true, or substantially truthful (and therefore not actionable), or that they were made without ill will in good faith or upon a reasonable belief in their veracity, or that they are not actionable.

If the ruling is reversed, and absolute privilege applies, statements made during background checks would not be actionable regardless of falsity or malice of the person uttering the statements.